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Section 11 Freedom from forced worK Section 11 (1) A person must not be held in slavery or servitude. (2) A person must not be made to perform forced or compulsory labour. (3) For the purposes of sub-section (2) ‘forced or compulsory labour’ does not include— (a) work or service normally required of a person who is under detention because of a lawful court order or who, under a lawful court order, has been conditionally released from detention or ordered to perform work in the community; or (b) work or service required because of an emergency threatening the Victorian community or a part of the Victorian community; or (c) work or service that forms part of normal civil obligations. (4) In this section ‘court order’ includes an order made by a court of another jurisdiction. 72 POLICY TRIGGERS: DO I NEED TO CONSIDER Slavery and servitude SECTION 11? Slavery is defined in article 1 of the Slavery You will need to consider s. 11 in assessing Convention 1926 to mean ‘the status or condition legislation, a policy or a program where it: of a person over whom any or all of the powers • compels the provision of any labour or the attaching to the right of ownership are exercised.’ performance of any service under threat of This definition encompasses the notion of effective a penalty; ownership of a person by someone else, as if the • gives a minister or public authority the power person were a piece of property. to employ or direct people to perform work in Servitude is not ownership despite the fact that a a vital industry or during a state of emergency. person under servitude may be directed where to live These policy triggers are not comprehensive. and may be unable to leave. The prohibition on servitude has been considered in the following cases: DISCUSSION • An applicant who was placed ‘at the disposal of the state’ for 10 years following the completion Rights to be free from slavery, servitude and forced of a prison sentence was not held in servitude, work are important rights in international human nor did his situation violate the right to liberty rights law. These rights were included in the ICCPR and security of the person.73 in part as a response to the aftermath of the Second World War during which forced labour was • Obliging a soldier to serve out a minimum widespread. Thus, the particular premise behind enlistment period in the armed forces, contrary protecting these rights is that persons should not to his wishes, did not constitute slavery or be subject to conditions that violate individual servitude.74 dignity and exploit human productivity. 73 Van Droogenbroeck v. Belgium (1982) 50 Eur Court HR (ser A). 74 W, X, Y and Z v. United Kingdom 11 YB 562 (1968), E Com HR. Forced or compulsory labour • whether the burden on the applicant is a proportionate one.78 The UN Human Rights Committee recently considered the meaning of the expression ‘forced If work required by law was ‘for a short period, or compulsory labour’ in a case against Australia. provided favourable remuneration and did not It said: involve any discriminatory, arbitrary or punitive application’ it may not contravene this provision.79 “… forced or compulsory labour” covers a range of conduct extending from, on the one hand, Similarly, an arrangement which, in practice, means labour imposed on an individual by way of that a person is prevented from working in his or criminal sanction, notably in particularly coercive, her chosen environment, or continuing a preferred exploitative or otherwise egregious conditions, vocation, is unlikely without more to violate this through, on the other hand, to lesser forms of section.80 labour in circumstances where punishment as a comparable sanction is threatened if the REASONABLE LIMITS ON SECTION 11 labour directed is not performed.’75 As with all of the human rights protected in the Forced or compulsory labour refers to work exacted Charter, the rights in s. 11 may be subject to from a person under the threat of a penalty, which reasonable limitations that can be demonstrably 76 he or she has not voluntarily offered to do. The justified in a democratic society in accordance 73 expression ‘forced labour’ suggests physical or with s. 7 of the Charter. You should refer to Part 2 mental constraint. of these Charter Guidelines for further information An example of a penalty might be a threat of on s. 7. punishment if the person does not perform the The right to freedom from forced or compulsory work. ‘Work’ is to be given a broad meaning and labour is also subject to a number of permissible K can cover all kinds of work or service, not just exceptions outlined in s. 11(3). physical work. wor Detainee labour Forced labour typically has two characteristics: (a) involuntariness; and (b) injustice, oppression Any work required to be done by a person who is forced or avoidable hardship.77 In relation to the second under detention because of a lawful court order, requirement, in other jurisdictions with a or who, under a lawful court order, has been from conditionally released from detention or ordered to comparable prohibition, the following factors have CHARTER GUIDELINES been relevant: perform work in the community, is exempt from the prohibition on forced labour. This provision applies • the threat of a penalty; to prisoners, including prisoners on remand, who reedom • the nature of the work required; for example, are detained because of a lawful court order. It also 11: F 11: whether the work is required in the general applies to other persons who are detained under a interest of the community; and lawful court order. ection The position is not altered by a subsequent S quashing of a conviction. 75 Faure v. Australia, Human Rights Committee, Communication No. 1036/2001, UN Doc. CCPR/C/85/ D/1036/2001 (23 November 2005), [7.5]. 76 Convention concerning Forced or Compulsory Labour, adopted 28 June 1930, 39 UNTS 55 (entered into force 78 Reitmayr v. Austria (1995) 20 EHRR CD 89. 1 May 1932). 79 Iverson v. Norway (1963) 6 YbK 278. 77 Van der Mussele v. Belgium (1983) 70 Eur Court HR 80 See for example, X v. Netherlands (1983) 32 Eur Comm (ser A) [37]; (1984) 6 EHRR 63 [37]. HR 180; Talman v. Netherlands [1997] EHRLR 448. SECTION 11 FREEDOM FROM FORCED WORK Note also: ‘…minor communal services of a kind which, being performed by the members of the • If the conditions for detention specified in the community in the direct interests of the said provision are not met (for example, the detention community, can therefore be considered as was not lawful and court‑ordered), forced normal civic obligations incumbent on members detainee labour may not be permitted.81 of the community, provided that the members • The qualification pertaining to detainees may of the community or their direct representatives cover forced work performed by prisoners shall have the right to be consulted in regard on behalf of private firms under contracts to the need for such services. concluded with the prison administration.82 … In the Committee’s view, to so qualify as a Paragraph (4) of s. 13 clarifies that the reference normal civil obligation, the labour in question to ‘court order’ in sub‑clause (3)(a) includes an must, at a minimum, not be an exceptional order made by a court of another jurisdiction. measure; it must not possess a punitive purpose This ensures that the exception would cover the or effect; and it must be provided for by law interstate transfer of prisoners to Victoria. in order to serve a legitimate purpose under the Covenant.’84 Emergencies Examples of normal civil obligations may be: 74 Work or service required because of an emergency threatening the Victorian community or a part of the • jury service; Victorian community is exempt from the prohibition • a lessor’s obligation to maintain his or her on forced labour. A similarly worded exception building; appears in Article 8(3)(c)(iii) of the ICCPR. • both compulsory fire service and a financial ‘Work or service that forms part of normal contribution in lieu of such service; civil obligations’ • performing community labour pursuant to Work or service forming part of normal civil a ‘Work for the Dole’ program.85 obligations is exempt from the prohibition on forced labour. The expression ‘work or service that forms part of normal civil obligations’ is not specifically defined in the Charter. The UN Human Rights Committee has said that it should be interpreted against the backdrop of the minimum standards contained in ILO Convention No. 29.83 That Convention, in article 2, paragraph 2(e) excludes from the definition of the term “forced or compulsory labour”: 81 De Wilde, Ooms and Versyp v. Belgium (1972) 14 Eur Court HR (ser A); (1979–80) 1 EHRR 438. 82 Twenty one Detained Persons v. Federal Republic of Germany (1968) 11 YbK 528. 83 Faure v. Australia, Human Rights Committee, 84 Ibid [7.5]. Communication No. 1036/2001, UN Doc. CCPR/C/85/ 85 Ibid. The ‘Work for the Dole’ program is a D/1036/2001 (23 November 2005) [4.11]. Commonwealth, rather than Victorian, scheme. KEY POINTS TO REMEMBER • If your policy, program or legislation requires work to be done by persons who are currently detained, • Slavery means effective ownership of a person ensure that they are being detained pursuant to a by someone else, as if the person were a piece ‘lawful court order’. Also pay particular attention of property. to ensuring that the conditions of detention • Servitude is not ownership, despite the fact that required by the Charter are met.

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